No. 96-1566
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
DOUGLAS L. FOWLKES, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
_____________________
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney
General
RICHARD A. FRIEDMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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QUESTIONS PRESENTED
1. Whether 18 U.S.C. 666(a)(l)(B), which prohibits
the acceptance of a corrupt payment by an official of
a local government agency that receives more than
$l0,000 in federal funds in a year, requires proof that
each payment in a series of payments to an official
influenced or rewarded a specific official act.
2. Whether Section 666(a)(l)(B) requires the gov-
ernment to prove that the corrupt payment affected or
could have affected the federal funds received by the
local government agency.
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TABLE OF CONTENTS
Opinion below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Discussion . . . . 7
Conclusion . . . . 14
TABLE OF AUTHORITIES
Cases:
McCormick v. United States, 500 U.S. 257
(1991) . . . . 12
Salinas v. United States, cert.. granted,
N0. 96-738 (Feb.24, 1997) . . . . 6, 13
United States v. Bonito, 57 F.3d 167 (2d Cir.
1995), cert. denied, 116 S. Ct. 713 (1996) . . . .11
United States v. Coyne, 4 F3.d 100 (2d Cir.
1993), cwt. denied, 510 U.S. 1095 (1994) . . . . 11
United States v. Crozier, 987 F.2d 893 (2d Cir.),
cert. denied, 510 U.S. 880 (1993) . . . . 11
United StateS v. Little, 889 F.2d 1367 (5th Cir.
1989), cert. denied, 495 U.S. 933 (1990) . . . .10
United States v. Mariano, 983 F.2d 1150 (1st
Cir. 1993) . . . . 10
United States v. Medley, 913 F.2d 1248 (7th
Cir. 1990) . . . . 7, 10
United States V. Paradies, 98 F.3d 1266
(11th Cir. 1996), petition for cert. pending,
No. 96-1346 . . . . 13
United States v. Santopietro, 996 F2.d 17 (2d
Cir. 1993), cert. denied, 510 U.S. 1092 (1994) . . . . 8, 10
Statutes and rule:
Hobbs Act, 18 U.S.C. 1951 . . . . 12
18 U.S.C. 201 . . . . 11, 12
18 U.S.C. 666 . . . . 2, 5, 6, 7, 10, 11, 12, 13
18 U.S.C. 666(a)(1)(B) . . . . 4, 5, 7, 8
III
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Iv
Statute and rule-Continued: Page
18 U.S.C. 666(b) . . . . 4
26 U.S.C. 7206(1) . . . . 2
Sup. Ct. R. 13.1 . . . . 12
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OCTOBER TERM , 1996
No. 96-1566
DOUGLAS L. FOWLKES, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-4a)
is unpublished, but the judgment is noted at 100 F. 3d
970 (Table).
JURISDICTION
The judgment, of the court of appeals was entered on
October 25, 1996. The petition for a writ of certiorari
was filed on January 23, 1997. A motion to amend the
petition for a writ of certiorari to add a question
presented was filed on April 21, 1997, and is therefore
out of time under this Court's Rule 13.1. The juris-
diction of this Court is invoked under 28 U.S.C.
1254(1).
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2
STATEMENT
Following a jury trial in the United States District
Court for the Northern District of Georgia, peti-
tioner was convicted on one count of accepting
corrupt payments, in violation of 18 U.S.C. 666, and
three counts of filing false income tax returns, in
violation of 26 U.S.C. 7206(1). He was sentenced to 41
months' imprisonment, to be followed by three years'
supervised release, and was fined $25,000. The court
of appeals affirmed. Pet. App. la-4a.
1. Petitioner was a member of the City Council of
Atlanta from 1961 to 1993. Harold Echols was a sub-
concessionaire at Atlanta Hartsfield International
Airport. Echols' rent depended upon the terms of the
concession agreement between the City of Atlanta
and the principal concessionaire, Dobbs Paschal Mid-
field Corporation. See Gov't C.A. Br. 2-4. The indict-
ment alleged that, on 49 occasions, petitioner received
cash from Echols, intending to be influenced or re-
warded in connection with business or transactions of
the City of Atlanta relating to concessions at the
Airport. Id. at 2, 5-10; Superseding Indictment 1-2.
From 1986 through 1993, Echols made cash pay-
ments to petitioner, ranging from $100 to $350, at
breakfast meetings, usually occurring weekly. Dur-
ing the period in which the payments were made,
petitioner favored Echols' interests in matters before
the City Council involving the subconcessionaires at
the Airport. For example, in the summer of 1987,
petitioner opposed the City's buyout of the principal
concession agreement, which would have been unfa-
vorable to Echols, but supported an amendment to the
agreement that would have benefited Echols. Gov't
C.A. Br. 7-8. Just before the debate and favorable vote
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on that issue, Echols paid for the airline tickets for a
vacation for petitioner and his wife. Id. at 7. In 1989,
a further rent-reduction proposal was supported by
petitioner and passed out of his committee, which
oversaw matters relating to the Airport. Id. at 8.
Petitioner issued a press release supporting the pro-
posal. The 1989 proposal was tabled to allow consid-
eration of the view of the incoming mayor. During
the period of consideration, Echols gave petitioner a
diamond bracelet for petitioner's wife. Id. at 8-9. In
1990, petitioner supported another amendment to the
concession agreement that would have resulted in a
rent reduction for Echols. When petitioner told
Echols that he would be on vacation during the vote
and would not return if he had to pay for the trip
himself, Echols paid for round-trip airfare and a
rental car so that petitioner could attend the vote.
The amendment passed with petitioner's support. Id.
at 9.
In 1992, Ira Jackson, who was the newly appointed
Commissioner of Aviation and who was also accepting
regular payoffs from Echols, proposed an entirely new
concessions program. Jackson's proposal called for
the termination of the concessionaire agreement and
for substantial rent reductions for the subconcession-
aires, including Echols. Despite the estimate of the
City's Department of Finance that the new proposal
would cost the City between $35 and $40 million,
petitioner supported it. The proposal was abandoned
when Jackson resigned as Commissioner of Aviation.
Gov't C.A. Br. 9-10.
In late 1992, Echols began to cooperate with the
FBI in the investigation of corruption in connection
with the Airport. At a January 6, 1993, breakfast
meeting with petitioner, Echols wore a hidden record-
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ing device while the two men discussed the federal
investigation and how to avoid detection. Gov't. C.A.
Br. 11. After that breakfast meeting, Echols made his
usual $350 payment to petitioner, which was captured
on videotape and audiotape. Id. at 12.
2. The offense under Section 666(a)(l)(B) provides,
in pertinent part:
Whoever, if the circumstance described in sub-
section (b) of this section exists -
(1) being an agent of an organization, or of
a State, local, or Indian tribal government, or
any agency thereof -
(B) corruptly solicits or demands for
the benefit of any person, or accepts or
agrees to accept, anything of value from
any person, intending to be influenced or
rewarded in connection with any busi-
ness, transaction, or series of transac-
tions of. such organization, government,
or agency involving any thing of value of
$5,000 or more;
shall be fined under this title, imprisoned not
more than 10 years or both.
The "circumstance described in subsection (b)" refer-
red to in the first clause of Section 666(a)(l)(B) is that
"the organization, government, or agency receives, in
any one year period, benefits in excess of $10,000
under a Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other form of
Federal assistance." 18 U.S.C. 666(b). Accordingly,
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to obtain a conviction under Section 666(a)(l)(B),
the government must show (as relevant here) that
(1) the defendant, was an agent of a local government;
(2) the local government received more than $10,000 in
a year in federal assistance; (3) the defendant cor-
ruptly accepted something of value intending to be
influenced or rewarded in connection with any busi-
ness, transaction, or series of transactions of the
government; and (4) the transactions of the agency
connected to the corrupt payment involved something
worth at least $5,000.
At trial, petitioner requested a jury instruction
that the government was required to prove that
petitioner accepted payments from Echols "with the
intent to be influenced, or with the knowledge that it
represented a reward for some particular past action,
or series of transactions on [petitioner's] part." Pet.
22-23. Petitioner also requested a charge that the
bribery prohibited by Section 666 "imports the notion
of some more or less specific quid pro quo for which
the gift or contribution is accepted." Pet. 23.
The district court declined to give those instruc-
tions. Instead, in instructing the jury on the Section
666 offense, the district court tracked the language of
the statute, charging that, to find petitioner guilty,
the jury was required to find that he "corruptly
accepted or agreed to accept something of value from
someone, [and that] he did so intending to be influ-
enced or rewarded in connection with any business,
transaction, or series of transactions of [the City of
Atlanta]." Pet. 24; 8 Tr. 162. The court further in-
structed the jury that, "[b]y definition, a bribe is
money or Paver bestowed on or promised to a person in
a position of trust to pervert his judgment or influ-
ence his conduct." Pet. 24; 8 Tr. 163. The court
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also charged that "[t]o act `corruptly', as that word is
used in these instructions, means to act voluntarily
and deliberately and for the purpose of improperly
influencing any business, or transaction, or series of
transactions of the [City of Atlanta]." Pet. 24-25; 8 Tr.
163. The jury found petitioner guilty on the Section 666
count involving the. payment captured on audio and
video tape. Petitioner was acquitted on all the other
Section 666 counts.
3. On appeal, petitioner argued that the district
court had erred in refusing to charge the jury that
Section 666 require: a quid pro quo, i.e., that the
payment represented an exchange or reward for a
specific official act. Petitioner did not argue that
Election 666 requires proof that the corrupt payment
he received affected or could have affected the federal
funds received by the local government agency for
which he worked. 1. The court of appeals affirmed the
___________________(footnotes)
1 Petitioner did argue on appeal that the government was
required, and had failed, to prove that $10,000 in federal
assistance had been received by the Atlanta Airport, rather
than the City of Atlanta as a whole. Pet. C.A. Br. 30-31. Peti-
tioner stated that " [t]he question raised by this appeal is
whether the $20,000 may be received by the City in any of its
programs, or whether the federal funds must be received by
the agency which is involved in the bribe." Id. at 30. In mak-
ing that argument, petitioner also stated that "the government
failed to prove that the bribe had any [e]ffect (or was designed
to have any effect) on an agency or program which received
any federal funds." Id. at 31. That last statement, however,
does not appear to have been an attempt to argue the precise
issue presented in Salinas v. United States, cert. granted, No.
96-738 (Feb. 24, 1997), namely, whether a bribe punishable
under Section 666 must he shown to have affected, or have had
the potential of affecting, federal funds.
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convictions in an unpublished per curiam memoran-
dum. The court set forth the arguments petitioner
had asserted on appeal and stated, "[w]e have carefully
reviewed the record in light of [petitioner's] conten-
tions and find no reversible error." Pet. App. 3a-4a.
DISCUSSION
1. a. Petitioner argues (Pet. 22-26) that the
district court erred in refusing to give his requested
jury instruction that Section 666 requires proof that
a payment was accepted for some "particular past
action or series of transactions" (Pet. 23) on the part
of a government official. He also contends (Pet. 1.0-21)
that the evidence was insufficient to show that the
payment he took from Echols on January 6, 1993, was
accepted in exchange or as a reward for a specific
official act. Those contentions are without merit.
The district court instructed the jury correctly on
the elements of Section 666, and the evidence was
sufficient to support the jury's finding of a corrupt
payment, under the proper instruction.
Section 666(a)(l)(B) punishes the receipt of a pay-
ment that is accepted corruptly, and with the intent
on the part of the recipient "to be influenced or
rewarded in connection with any business, trans-
action, or series of transactions" of the local govern-
ment entity for which the defendant works. The
government is required to prove that the recipient
accepted the payment with the intent to be influenced
in, or rewarded for, an improper official act. See
United States v. Medley, 913 F.2d 1248, 1260 (7th Cir.
1990). The corrupt payment must be given to induce
favorable action in the future, to reward favorable
action taken in the past, or both. The difference be-
tween the two theories of liability under Section
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8
666(a)(l)(B) is the relative timing of the corrupt pay-
ment and the official transaction or series of trans-
actions to which it is connected: a corrupt payment
intended to influence official actions is given before,
and in connection with, official actions to be taken in
the future, whereas a corrupt payment intended to
reward official actions is given after, and in con-
nection with, such actions taken in the past. See
United States v. Santopietro, 996 F.2d 17, 20-21 (2d
Cir. 1993), cert. denied, 510 U.S. 1092 (1994).
The district court correctly instructed the jury
that Section 666(a)(l)(B) requires a connection be-
tween a corrupt payment and an improper official
transaction or series of transactions. The court
instructed the jury that it could convict petitioner
only if it found that he had accepted Echols' payment
corruptly, and "intending to be influenced' or re-
warded in connection with" city transactions. Pet.
24. It also charged that "[t]o act `corruptly', as that
word is used in these instructions, means to act
voluntarily and deliberately and for the purpose of
improperly influencing any business, or transaction,
or series of transactions of the government of the
[C]ity of Atlanta." Pet. 24-25 (emphasis added). And
it further charged that, "[b]y definition, a bribe is
money or a favor bestowed on or promised to a person
in a position of trust to pervert his judgment or
influence his conduct." Pet. 24 (emphasis added).
Those instructions made clear to the jury that, to find
petitioner guilty, it was required to find that he
accepted money from Echols as a reward or induce-
ment for taking improper official actions on Echols'
behalf, and that there was a connection between the
payment and the official transactions. `There was no
reasonable passability that the jury would have
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9
convicted petitioner if it had found that the payment
he received was a legitimate loan, a proper campaign
contribution, or a gratuity intended merely to culti-
vate general good will on the part of petitioner.
The evidence showed that the January 6, 1993, pay-
ment was one of a series of payments intended both to
influence and reward petitioner in connection with
acts he took in favor of Echols' business interests at
the Airport. Petitioner was Chairman of the City
Council's Transportation Committee at the time of
the January 6, 1993, videotaped payment on which the
count of conviction was based. He had taken nu-
merous actions on Echols' behalf in his capacity as
Chairman. Also, during the January 6, 1993, break-
fast meeting at which the payment was given,
petitioner and Echols discussed at some length the
City's negotiation with Dobbs Paschal, the fact that
negotiations had been ongoing for two years, and the
fact that, under the terms of the Principal Conces-
sionaire Agreement, the subconcessionaries had the
right to remain at the Airport through 1995. Gov't
C.A. Br. 31. The videotaped evidence of the payment
thus supported a conclusion that Echols was continu-
ing to pay petitioner for favorable actions that
petitioner had already taken on his behalf in the past,
as well as for favorable actions that petitioner would
be in a position to take in the future. Petitioner was,
in effect, "on retainer" while the cash payments were
made in order to give Echols favorable treatment
whenever concessions matters arose.
Petitioner appears to argue that the government
was required to prove that each separate payment was
given and received in exchange or as a reward for a
separate official act. The statute contains no such
requirement. Corrupt payments may be punished
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10
under Section 666 if they are "rewards for past
[actions] and bait for [future ones]." United States v.
Little, 889 F.2d 1367, 1369 (5th Cir. `1989), cert. denied,
495 U.S. 933 (1990). Petitioner was, in effect, on
Echols' regular payroll, accepting periodic payments
to act in Echols' interests when concessions matters
arose. Thus, each payment in the series was given
and accepted in connection with all of the favorable
actions that petitioner took on Echols' behalf in his
official capacity during the relevant period. The fact
that the illicit payments were made too frequently for
each payment to be tied to one and only one particular
act enhances, rather than diminishes, the corrupt
nature of the payoffs. And although the jury found
petitioner guilty only on the count arising out of the
payment captured on videotape, the acquittals on the
other counts do not vitiate the government's proof
that the payment captured on videotape was one of
a series of payments that, in combination, were in-
tended to influence and reward petitioner with
respect to acts in his official capacity favorable to
Echols. 2.
___________________(footnotes)
2 Petitioner suggests (Pet. 17) that United States v.
Medley, supra, holds that Section 666 requires proof that a
payment is accepted in exchange for a separate and discrete
official act. That case, however, concerned a single $25,000
payment; the court did not address a situation involving a
series of payments, nor did it suggest that each payment in a
series must be linked to a separate official act. Cases involving
retainer payments similar to those made in petitioner's case
have found a violation of Section 666. See United States v.
Santopietro, supra (corrupt payments received over several
months); United States v. Mariano, 983 F.2d 1150, 1152 (lst
Cir. 1993) (cash payments made over a substantial period of
time); Little, 889 F.2d at 1369 (routine payoffs over a period of
time).
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b. Petitioner also argues that the proof in this
case showed only that he received a gratuity for a
past act, and not a bribe in exchange for a promise on
his part to perform a specific official act in the future
(Pet. 13-19). The case, however, was submitted to the
jury on the theory that petitioner accepted the
payment with the intent to influence or reward an
official act. See Superseding Indictment 2. Thus, the
jury could have properly found petitioner guilty if it
concluded either that he corruptly accepted the $350
from Echols in connection with actions that he had
already taken on Echols' behalf or that he accepted
the payment corruptly intending to take actions on
Echols' behalf in the future.
Contrary to petitioner's contention, the fact that
liability may be based under Section 666 for corrupt
acceptante of a reward for past acts does not blur the
distinction between a corrupt payment and a gratuity.
Although courts have occasionally referred to Sec-
tion 666 as punishing gratuities, they have used that
term only to make clear that Section 666 punishes
corrupt payments given and taken in connection with
past acts as well as acts in the future. "Thus, the
current, statute continues to cover payments made [or
accepted] with intent to reward past official conduct,
so long as the intent to reward is corrupt." United
States v. Bonito, 57 F.3d 167, 170-171 (2d Cir. 1995),
cert. denied, 116 S. Ct. 713 (1996); see also United
States v. Coyne, 4 F.3d 100, 111 (2d Cir. 1993), cert.
denied, 510 U.S. 1095 (1994); United States v. Crozier,
987 F.2d 893, 898-899 (2d Cir.), cert. denied, 510 U.S.
880 (1993).
Petitioner relies (Pet. 11-12) on a different statute,
18 U.S.C. 201, and to the distinction in that provision
between bribes and gratuities. He also refers (Pet.
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12
18-19) to the different punishments under Section 201
for the bribery and gratuity offenses. That distinc-
tion drawn under Section 201 between bribes and
gratuities has little relevance to this case. Section
666 plainly requires that the payment must be cor-
ruptly received to influence or reward the defendant
in connection with transactions of his government
agency, whether the payment is made before or after
the official acts. A defendant could not reconvicted
under Section 666 without proof that the payment was
connected to an official transaction or series of
transactions.
Referring to cases under the Hobbs Act, 18 U.S.C.
1951, such as McCormick v. United States, 500 U.S.
257 (1991), petitioner also argues (Pet. 19-21) that a
strict quid pro quo requirement is essential to avoid
punishing public officials for accepting campaign
contributions. The requirement of Section 666 that
the payment be "in connection with" the official
transaction or series of transactions is sufficient to
accomplish that objective. If petitioner had accepted
the $350 payment not as a part of series of payoffs
for his favorable acts, but rather as a campaign con-
tribution, he could not have been found to have
"corruptly" accepted it "intending to be influenced or
rewarded in connection with any business, trans-
action, or series of transactions" of his agency, as
required bisection 666.
2. In a motion for leave to amend his certiorari
petition, filed outside the time for filing a petition for
a writ of certiorari under this Court's Rule 13.1,
petitioner seeks to raise the additional question
whether Section 666 requires the government to
prove that the bribes proscribed by the statute
affected or could have affected the federal funds
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received by the local government agency for which
the defendant works. That is one of the questions
presented in Salinas v. United States, cert. granted,
No. 96-738 (Feb. 24, 1997). Petitioner did not raise
that contention in the district court or in the court of
appeals, and the court of appeals did not pass upon it in
this case. In a companion case, however, also arising
out of the bribe transactions involved in this case, the
court of appeals has held that Section 666 does not
require the government to show that a bribe could
have affected federal funds. See United States V.
Paradies, 98 F.3d 1266, 1288-1289 (llth Cir. 1996),
petition for cert. pending, No. 96-1346.
The Court's decision in Salinas may affect the
court of appeals' treatment of petitioner's conviction
in this case. Accordingly, should the Court grant
petitioner's motion to amend his certiorari petition,
the petition should be held for the decision in Salinas,
and then disposed of as appropriate in light of the
decision in that case. 3. Should the Court hold in Sali-
nas that Section 666 does not require the government
to prove that the bribe affected or could have affected
federal funds, then the petition should be denied.
Should the Court hold in Salinas that Section 666
does contain such an element, then the court of
appeals will be free on remand to consider whether
petitioner has waived that argument, in light of his
failure to raise it on his initial appeal.
___________________(footnotes)
3 We have suggested that the Court hold the petition in the
companion case of Paradise pending the decision in Salinas.
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CONCLUSION
As to the first question presented, the petition for a
writ of certiorari should be denied. As to the question
presented by the motion to amend the petition, the
petition should be held for the decision in Salinas v.
United States, No." 96-788, and then disposed of as
appropriate in light of that decision.
Respectfully submitted.
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney
General
RICHARD A. FRIEDMAN
Attorney
JUNE 1997